Amin George Forji
Faculty of Law, Department of Public Law, University of Helsinki
The Positivist Doctrine
As afore-stated, criminal behavior could only be properly dealt with if it was well understood.But considering the diversity in opinion, it is fair to say that such an understanding can only rest in the eyes of the beholder. In fact, the classical theorists proposed one way of looking at criminal behavior, and the positivists suggested another. Developed around the 1820s, the positivist school quite contrary to the classical theorists focused wholly on the criminal rather than legal issues and crime prevention. The school was heavily inspired by Charles Darwin’s evolution theory.Darwin perceived humans as belonging to the same specie with other animals except that humans had a higher level of development. The behavior of humans could be explained through biological and cultural evolution “rather than as self-determining beings who were free to do what they wanted.” In other words, the positivist did not conceive humans as having a free will of their own. Instead, their behaviors were determined by a correlation of various biological, sociological and psychological factors. This presupposes that one is not supposed to be criminally responsible; since according to this interpretation, criminality evolves out of one’s biological or psychological atavism. Erdson H. Sutherland, one of the fervent followers of this doctrine has advanced the following biological explanation:
One of the theories presented as an explanation of the the age ratios in crime is that they are due directly to biological traits such as physical strength and vigour: crimes are committed frequently by persons who are strong and active and infrequently by persons who are weak and passive. Another biological theory is that crimes are concentrated in three periods, ages three to six, fourteen to sixteen, and forty-two to forty-five, and that these periods are products of libidinal tides due to changes in the instincts of sex and aggression and to changes in the ego strength. A third biological theory is that inheritance is the direct cause.
Instead, attention has to be placed on those factors that are believed to be at the root causes of criminality. The school also rejected the concept of Nulla Poena Sine Lege in favour of a proposition that punishment must fit the individual criminal rather than the crime.The treatment of criminals must go along scientific methods. The scientific study of criminal behavior, the school upholds would uncover the root causes of such behavior. As to why people commit crimes, the school led by its founding father, Italian born Cesare Lombroso (1835-1909) took an unqualified stand that some people are by nature born criminals. Criminality is thus hereditary. To Lombroso, most criminals were biologically defective hence inferior and unexpected to be law abiding.Having established that the “criminal man” was a subhuman type, a modern savage with physical features similar to those of lower primates such as apes, Lombroso subsequently stated that the behavior of such a biological atavist would inevitably be contrary to the rules and standards expected in a civilized society. Criminal types, he continued, could be identified by the shape of their skulls which clearly confirmed them as atavistic or savage. In his book, Criminal Man, Lombroso elaborated his rather controversial thesis at length based on his personal scientific findings and experiments. While working at a mental facility and various prisons as a psychiatrist, he purportedly observed some similarities in the physiques of the various prisoners. His sample included inmates, patients and delinquent soldiers. Upon observing and analyzing their skulls, he came to the conclusion that some of them had inherited their criminal tendencies. He also observed that there were three broad categories of criminals namely: the born criminal, the insane criminal and the criminaloids. The methods of Lombroso were as weird as his findings. Performing a post mortem on the skull of a notorious criminal called Villella; Lombroso claimed to have diagnosed the roots of criminality. It is as a result of a biological abnormality inborn in some people. Upon opening Villella’s skull, he claimed to have noticed a depression in the cerebellum which he determined was an abnormal atavism. The middle lobe of the cerebellum was enlarged. The significance of this atavism, he asserted was demonstrative of the tendency by some human beings to return to their distant type, which is a throwback to a more primitive human being.
Lombroso clinical research method was however far from being an isolated incident. A fellow positivist, Baron Raffaele Garofalo (1851-1934) in his book Criminology, distinguished between “natural crimes”(to which he attached great importance) and police crimes (a residual category of lesser importance), before settling down on a newfound concept called “danger”, whereupon he emphasized that society needed to be protected from dangerous elements.Natural crimes are those “which violate two basic altruistic sentiments, pity (revulsion against the voluntary infliction of suffering on others) and property (respect for the property rights of others). Police crimes on the other hand are “behaviours which do not offend these altruistic sentiments but are nonetheless called criminal by law.” The notion of dangerousness itself was built around mental health legislation and criminal justice administration. It essentially meant people who are considered to be of moral high risks to themselves or the society at large. So, it clearly targeted offenders and not the law. Natural crimes, Morrison has pointed out are particularly important for at least two reasons. Not only are they more serious but also provide a more unifying principle which connects criminal law with natural social processes. Garofalo asserted that in order to understand the society and social phenomenon, we must seek application in natural sciences. He demonstrated for instance that suicides and self injury were directly connected to peoples’ lack of connection to their social groupings.
The Classical and the Positivist schools of criminology each present us with an extreme position. The irony in it all is that both concepts vibrantly reflect that intellectual revolution in criminal justice thinking since the age of enlightenment. While the classical doctrine is heavily based on hedonism, the positivist orientation suggests an unconventional scientific (clinical) examination of criminals. Whichever way we appreciate either doctrine, there can be no denying the fact that both positions are tainted with noticeable loopholes. The classical school is obviously so inclined to law based on its idea of self interests. In real life, things are not as simplistic as the school tends to have it. For instance, it is not a very easy task for humans to adjust pains and pleasures in order to arrive at comfortable doses necessarily to influence their doing or not doing a thing. The supposition that everybody is literally equal before the law is either flawed, misguided or both, because such an assumption not only disregards individual differences but their circumstantial realities as well.
There is ambiguity as well in the positivists’ linking of biological traits to the criminality. Lombrosso’s exclusive utilization of criminals in his clinical examination leaves a cloud of doubt whether he would have reached a different scientific outcome had he included noncriminals in his experiment. Despite the above discrepancies both doctrines have nonetheless stirred remarkable changes in traditional thinking about society and human nature. They have both signaled the necessity for society to set legitimate goals for its constituents. With one firm on the proposition that learned (classical) and another that it is rather earned (positivists), it remains even in present times to connect the two doctrines. There can be a gist of truth in either hypothesis, except that in actual fact, both assertions are no more than gross overstatements. Both doctrines fail to answer one very important question. Which is leaned or earned more: is it delinquent or non-delinquent behavior? Does earning prevent one from learning criminal behavior and vice-versa? If indeed all normal humans are created equal, it goes without saying that they all possess similar potentials to adjust (whether by earning or learning) to law and order. The difference may therefore rather lie in other societal factors such as environmental, cultural, economic, political, etc. It is common sense that a poor upbringing and exposure to crime is a breeding ground par excellence. Given the complexities of humans and society, it is fair to say that the categories of crime can never be closed.
In-between the discrepancies between the two doctrines, one particular group of critics, notably adherents of anomie (normlessness) have observed that beyond theory, both the classical and the positivists’ postulations are inadequate in explaining the realities of social order.
While it is necessary for society to set legitimate goals (social coexistence, government, rule of law,…), such goals are only important if they are matched with legitimate means(education, finance, justice, politics, handwork), to facilitate their realization. However, societal goals always come with barriers, thus propelling the way for reactive behavior by those people who do not see a leeway of attaining their self interests. Proponents of anomie have identified at least four ways that an individual faced between means and barriers can react, to wit: he can either learn to live with his handicap situation or simply retreat, or innovate by seeking ways to break the law (that is, finds deviant outlets), he can ritualize (for example, trusting his demise to prayers), or at the very worse, he can rebel.
Administering Sanction: General Public and public Official The debate so far has been centered on theoretical precepts explaining the correlation between behavior and law as pillars of human sociology. I have also established that law is a coercive normative order. I now intend to conclude by moving the discussion further by deconstructing why and how agents of the legal system (public officials) apply the measures of coercion (sanctions) decreed by the legal order. I have already pointed out that every social order is tailored to function as specific response to the pragmatism of a given community.
Thus, the individual enforcing the punishment in effect acts as an agent of the social community. The legal sanction is interpreted as “an act of the legal community; the transcendental sanction-the sickness or death of the sinner-is an act of the superhuman authority of the deceased ancestors, of God.”For the purpose of specificity, discussion in this section would however exclude non-legal social orders (religion and morality), since law is the primary normative order that stipulates sanctions, and moreover because state officials are primarily mandated to enforce legal instruments and not moral or religious ordinances.
An examination of the role of the official is important because a legal instrument in itself is nothing but a piece of paper used as a medium for expressing law. A typical dynamic of the law is that positive law not only has to be created. It has to be applied. The public official’s presence not only facilitates the enforcement process but transforms the purpose of the law into reality.
As noted earlier, while in the case of murder, the law strictly forbids the killing of another human being, punishment is incumbent on the judge who by the same text is authorized to levy an imprisonment penalty or a death sentence in the worse scenario on anyone found guilty of that offense. The text can thus be read from two angles thus: first, the prohibition clause that ‘one ought not kill another’, then the consequential ‘if-clause’ of the rule, which clearly is an invitation to the public official (judge) to apply the analogous sanction whenever there is murder. The violation of the primary legal obligation triggers criminal proceedings in view of applying the consequential sanctions.
The coercive character of the law signifies law’s function in controlling human behavior specifically by prescribing punishment.This seems to have been the starting point for Kelsen. To him, every legal system is made up of laws (coercive norms) which boils down to instructions to state officials to apply force (sanctions). Every law in its raw state, Kelsen noted, obligates the society to observe a particular behavior under certain circumstances. But left to themselves, individual members of the society would certainly not robotically adhere to legal caveats. It is only through the authoritative intervention of public officials who apply sanctions for all violations that law gets its intended meaning. Indeed, Kelsen’s contention is that not only do all legal norms prescribe sanctions but every legal norm by default mandates the public official to apply the sanction.
Kelsen’s conception of the legal system and the public official has been criticized by some scholars for being too rigid. His main critic, Herbert Hart has pointed out that Kelsen’s theory is a disservice to the social function of law, for as he puts it, law is primarily addressed to the society at large and not just the public official. Hart’s main fear is that too much focus on the public official would blur whose behavior constitutes the main target of the law, which to Hart, is that of the general public. Some other writers are of the opinion that there are actually two separate norms for the general public and the public officials. Jeremy Bentham for instance has observed that “the law which converts an act into an offense, and the law which directs the punishment of that offense, are, properly speaking, neither the same law nor parts of the same law.” Thus why Kelsen’s theory sees the same norm as directed to regulate two different behaviors (general public and public official), Hart and Bentham provide that a legal norm can address only one person (behavior) at a time. Hart has equally rejected Kelsen’s insistence on sanctions to violations, arguing in return that “law without sanctions is perfectly conceivable.”92Such is the case with nonbinding legislations (soft laws) and prostitution.
All the aforementioned hypothesis, irrespective of whether they conceive a legal norm as applying to one person (behavior) at a time or two separate behaviors, apparently presuppose the existence of legal personality for all members of the society. My observation is that it is only by stretch, notably the laying of too much emphasis on the public official that Kelsen, Hart and Bentham formulated their various theses. The problem is that they all overlook the fact that legal personality in practical sense is not acquired by default. Instead, it is the legal system that arbitrarily decides who to give or deny legal personality. For instance, most slaves were generally accepted as belonging to the human race, but for the most part, they were regarded as lacking legal personality. There has also been an ongoing debate on the status of Guantanamo detainees. The US government has been deliberately vague on their legal status. Until the US government comes out clean, it can be said that these detainees in effect lack legal personality